Employers can lawfully ban employees from using e-mail for non-work-related activities, including union activities.

The Eugene Newspapers Guild represented about 150 employees at Guard-Publishing Co., a daily newspaper in Eugene, Oregon. Guard Publishing advised its employees in a written policy that they were prohibited from using its internal communication systems and e-mail equipment to solicit "for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations."

When the guild’s president sent two e-mails urging employees to wear green to support the union in contract negotiations and to participate in the union’s local parade, Guard Publishing disciplined him for violating the non-solicitation rule.

After unfair labor practice charges were filed with the National Labor Relations Board, the board found that Guard Publishing did not violate federal law when it maintained its policy of prohibiting employee use of the employer’s e-mail system for non-job-related solicitations.

Under prior precedent, discrimination would exist if the employer disciplined an employee for using corporate resources to send union-related e-mail, but permitted any other types of e-mail unrelated to work. In overruling prior precedent, the NLRB narrowed the scope of what properly defines discrimination.

Now, unlawful discrimination must consist of disparate treatment of activities or communications on the basis of the employee’s union activities—for example, if an employee is permitted to e-mail to solicit for nonunion matters, but not union matters.

Although Guard Publishing tolerated personal employee e-mail, there was no evidence that it permitted employees to use e-mail to solicit other employees to support any group or organization. Guard Publ’g d/b/a Registered-Guard, 315 NLRB No. 70 (12/16/07).

Impact: Employers can lawfully ban employees from using e-mail for non-work-related activities, including union activities.